LoLo Group Co Ltd v Runan (Aust) Pty Ltd

This matter concerned an opposition by LoLo Group Co Ltd to the registration of a trade mark by Runan (Aust) Pty Ltd. The opposition was heard by a delegate of the Registrar of Trade Marks. The applicant did not appear or file submissions, while the opponent presented evidence of its prior use of an identical trade mark on goods substantially identical to those sought to be registered.

The primary legal issue before the court was whether the applicant was the owner of the trade mark, as provided for by section 58 of the *Trade Marks Act*. To succeed on this ground, the opponent was required to demonstrate that it had used a trade mark substantially identical to the opposed mark on goods of the same kind, prior to the priority date of the applicant's application. The court also considered the scope of the goods for which registration was sought and whether a suitable restriction could be imposed.

The court found that the opponent had established its ground for opposition under section 58. Evidence showed that the opponent had imported goods bearing an identical trade mark into Australia on or before 20 December 2005. As the applicant had provided no evidence of its own use, the relevant date for assessing ownership was the filing date of the application, 5 January 2006. The opponent's prior use predated this date. While the opposed trade mark specification included goods beyond "almond juices," the court noted the difficulty in imposing a precise restriction without further evidence or submissions from the parties.

Consequently, the Registrar refused to register the trade mark application. The opponent was awarded costs against the applicant.